Cease and Desist Letter California
We are a California law firm with significant experience dealing with cease and desist letters.
A cease and desist letter serves as the first formal step in stopping alleged illegal activity and preventing it from resuming. Many cease and desist letters in California are sent due to intellectual property violations, but these legal notices are also used in other areas of the law. However, our practice is limited to intellectual property issues including trademark infringement, copyright infringement, patent infringement and unfair competition.
The point of a cease and desist letter is to reach an acceptable conclusion to an infringement issue without the time or expense that comes with litigation. While a lawsuit may sometimes be necessary to ensure justice, knowing how to properly utilize cease and desist orders is one of the most powerful tools in the intellectual property world.
What is a Cease and Desist Letter?
The purpose of these letters is to notify the individual engaged in misconduct that their actions are violating rights and must immediately cease. They also threaten further legal action – including potential litigation – that will result if the offending activities aren’t ended. These legal notices have proven very effective in the legal realm. In fact, their use has been credited with keeping over 97 percent of legal disputes out of the court system.
Cease and desist letters are often the first and last step of any intellectual property legal dispute. This is because accidental infringers often need only be alerted of their actions. Willful infringers are similarly likely to end their misconduct when faced with the very real possibility of financial loss. Between 2009 and 2017, more than $5 billion was awarded to victims of trademark infringement alone. A full 86 percent of those damages came from default judgments.
This means those engaged in trademark, copyright and patent infringement have a huge financial incentive to adhere to the demands of cease and desist letters.
Cease and Desist in Intellectual Property
Intellectual property cease and desist letters differ from those in other areas of the law. These legal notices can also vary dependent on the type of intellectual property in question. When sending such a letter, there is important information that should be included.
- Contact information (name, address, phone) for both parties.
- Specific property that’s being infringed upon.
- Registration numbers of property in question.
- Proof that you’re the owner of said property.
- Circumstances and dates in which the violation(s) occurred.
- Demand that the violating party end misconduct (cease).
- Demand that the violating party never resume the misconduct (desist).
- Explanation of further legal action that may occur.
- Deadline for expected response (usually 10 days).
This information is necessary in California cease and desist letters regardless of the particular area of law. Keep in mind that the lack of an intellectual property registration number doesn’t negate your ability to send a cease and desist letter. Registration isn’t required, for instance, to garner copyright and trademark protections. They are essential, however, if you plan to bring litigation. Similarly, you can claim rights over pending patents thanks to the American Inventors Protection Act of 1999.
Trademark Cease and Desist
There are somewhere between 4,000 and 4,800 trademark litigation cases filed yearly in the United States. Most of these cases are based on a likelihood of confusion. If you can show that consumers are likely to confuse your trademark with a mark used by another entity, it’s probable that you’ll prevail in court. You should use your trademark cease and desist letter to lay out your case that a likelihood of confusion exists.
Patent Cease and Desist
For patent infringement you should include your patent registration number and the specifics of the infringing acts. All of this will ensure that the infringer cannot claim ignorance of the law. You may see our patent cease and desist letter page for more information.
Copyright Cease and Desist
Sending Cease and Desist Letters
No two instances of intellectual property infringement are the same, and this means that every violation must be treated based on the facts of the case. Single instances of copyright infringement related to misuse of an image on a small blog, for instance, may not be worth the trouble of filing a lawsuit in federal court. Regardless of the severity of a particular violation, though, it’s still important to contact the infringer.
One of the biggest benefits of sending a California cease and desist letter is that it sets up an evidentiary trail. The penalties for intellectual property violations increase dramatically if it can be proven that an infringer was aware of their own misconduct. If you show that you sent this legal notice to the violator, it will be hard for them to claim in court that they didn’t know their actions constituted infringement.
After drafting a cease and desist letter with all the appropriate information, you have options in how you wish to send it. The world is becoming more digital, so often the best way to get a response is to send the letter by email.
In the event we don’t receive immediate confirmation of receipt, we also send our cease and desist letters by FedEx. Both of these means of deliver creates additional evidence of when your notice was sent, when it was received and by whom. While a legitimate cease and desist letter will typically eliminate the need for further legal steps, being vigilant during this process will ensure you have a strong case if litigation does occur.
What if the Cease and Desist Letter is Ignored?
While it is possible that the recipient will ignore the cease and desist letter, in our experience this situation is rare. It is much more common for an infringer to respond by claiming that no infringing activity has occurred. If an infringer ever does refuse to comply with a cease and desist letter, we recommend litigation as the next step.
This means you’ll need to file a lawsuit in federal court. At this point, it is possible to have an injunction issued that could immediately end further infringement. The most common result is that however is that the infringer has a change of heart and decides to either stop the infringement or make some offer of settlement.
Responding to a Cease and Desist Letter
If you’ve received a California cease and desist letter, the first step is to avoid panicking. You have plenty of time to respond to the notice, and simply receiving a letter doesn’t necessarily mean you’ve engaged in infringement. In fact, you’re under no legal obligation to even respond to such a warning. By taking this route, though, definitely is not recommended because it can lead to you being sued in a court of law.
Additionally, a cease and desist response letter is an opportunity to present your reasoning for use. Ending infringing activity is your best course of action, but if you don’t feel you’re in violation of intellectual property laws, you can explain this to the sender. It’s important that you navigate the legal waters of response letters carefully. If you continue alleged infringing activities after receiving such a notice, this could later be viewed as willful infringement. This is why we recommend that you have an attorney respond promptly if you receive such a letter.
Bad Faith Cease and Desist Letters
Americans spend $251 billion in litigation every single year. By comparison, Italy, Germany, Japan and Spain only spend about $101 billion combined during the same period. Americans tend to be litigious, which is why bad faith cease and desist letters can become an issue. Also, these letters can be sent relatively inexpensively so some companies send them liberally. Those who send bad faith notices may have no real intention of ever defending their alleged property. Some common examples of overzealous cease and desist letters include:
- Established companies trying to scare new competitors.
- A seller may ignore the first sale doctrine in trying to prevent legitimate sales.
- “Squatters” often purchase intellectual property solely to stop others from using it.
A cease and desist letter sent in any of these instances would typically be considered bad faith. Unfortunately, there are few legal remedies when facing this issue. Some courts may view this as an unfair trade practice.
If you need to send a cease and desist letter or have received one and need to respond, please contact us today.